St. Louis Southwestern Railway Co. v. Myzell

• Decision Date: 06 July 1908
• Citation: 112 S.W. 203,87 Ark. 123
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. MYZELL
• Court: Arkansas Supreme Court

112 S.W. 203

87 Ark. 123

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. MYZELL

Supreme Court of Arkansas

July 6, 1908

Appeal from Lonoke Circuit Court; Eugene Lankford, Judge; affirmed as to compensatory damages, reversed as to exemplary damages.

Judgment affirmed and reversed and a cause as to that dismissed.

S. H West and Bridges, Wooldridge & Gantt, for appellant.

1. In view of the conflict in the evidence as to appellee's conduct at the time, whether or not he was boisterous and profane, it was competent, and material to appellant's defense, to prove his conduct generally when in a drunken condition; and it was error to exclude such testimony. 56 Ark. 37.

2. The third instruction is erroneous in stating an amount which the jury may find. 58 Ark. 136. Also because the evidence does not support a finding for exemplary damages. A corporation cannot be held for such damages resulting from an act of an employee, unless it appears from the evidence, not only that the act was wrongful, but also that the employee was acting in the line of his employment and that the act was willful and malicious. 70 Ark. 136; 53 Ark. 7. There is no case made out for punitive damages, even against the auditor; certainly none against the company. There is lacking that element of wilfulness or conscious indifference to consequences from which malice may be inferred, that is necessary to sustain such a recovery. 41 Ark. 295; 1 Baldwin 59; 1 Joyce on Dam 119; Id. § 121; 91 U.S. 489; 52 Am. & Eng. R Cas. 409; 116 Ala. 642; 9 Am. & Eng. R. Cas. 724; 183 Mo. 119; 110 Ala. 329; 18 So. 737; 1 S.W. 129; 20 Cal. 56, 81 Am. Dec. 93; 71 Iowa 255; 76 Iowa 513; 13 How. 371; 21 How. 202; 12 Am. & Eng. Enc. of L. 21; 13 Cyc. 112; 147 U.S. 101; 65 Iowa 543.

Jas. B. Gray and Trimble, Robinson & Trimble, for appellee.

1. The testimony sought to be introduced as to plaintiff's conduct on other occasions when drinking was properly excluded. It was not admissible to prove intoxication at the time complained of, nor can conduct on other occasions when drunk be proved to establish his conduct at the time when he was assaulted. 17 Am. & Eng. Enc. of L. 408; 115 Cal. 567; 29 Iowa 268.

2. The court's third instruction specifically limits the recovery to such damages as the evidence establishes. While a reference in an instruction to the amount sued for is not regarded with favor, it is not reversable error. 82 Ark. 62; 78 Ark. 380. The instruction was not prejudicial, because the verdict was for a smaller sum than was sued for, and because the jury were expressly limited to such sum as they believed proper under the evidence, not exceeding the amount sued for. Moreover, appellant's exception, being general, does not avail here. 66 Ark. 264; 70 Ark. 563; 74 Ark. 355; 83 Ark. 61; 66 Ark. 46.

3. There was ample evidence to warrant the instruction as to punitive damages. 83 Ark. 6. There is no merit in the contention that the auditor was not acting in the line of his employment. 67 Ark. 55; 82 Ark. 289; 10 C. C. A. 463. Conscious indifference to consequences will support punitive damages. 84 Ark. 241; Voorheis, Measure Dam.Pers. Inj. § 193. Punitive damages are recoverable in an action for assault where the injury was wantonly or vindictively inflicted. 47 Mo. 92; 34 Pa.St. 48. The manner of the assault and the force used warrant the conclusion that the injury was occasioned by a conscious and wanton disregard of appellee's safety. 56 Ark. 52. If there is testimony tending to show that the assault was wanton or malicious, the court will submit the question of the allowance of punitive damages to the jury. 4 Sutherland on Dam. (3 Ed.), § 1092; Watson on Dam. Pers. Inj. (1901 Ed.), § 740; Voorheis, Measure of Dam. for Pers. Inj. § 186; Id. § 308. Provocation does not necessarily defeat a recovery of exemplary damages. The conduct of both parties may be considered. 1 Joyce on Dam. § 333; Voorheis on Meas. Dam. Pers. Inj. § 193. If appellee was drunk at the time, that did not authorize appellant to treat him with personal violence, nor does it defeat a recovery. 29 Ill.App. 90.

4. The verdict is not excessive. Watson on Dam. Pers. Inj. (1901 Ed.) § 741; Voorheis, Meas. Dam. Pers. Inj. § 187; 35 Ark. 494; 83 Ark. 6.

OPINION

HILL, C. J.

Myzell was in Pine Bluff, having his hand treated for cancer thereon, and took a train on appellant's railroad from that city to his home at England. He paid the train auditor a cash fare, as he thought, to England, the auditor thought to Sherrill, an intermediate station; and after passing Sherrill an altercation arose between him and the auditor as to whether he had paid to England or only to Sherrill. The count of the money showed the auditor was right in this controversy. The occurrence after he had paid a second time was thus described by Myzell: "I said, 'I want to drop a thought with you; if you have pulled me for two fares somebody will think of this some other time;' and he said, 'Sit down,' and I said, 'All right,' and he put his hands on me, and I sat down; but I said, 'I want to jog your memory about this,' and he jammed me down and set me down wrong."

The auditor evidently used considerable force in "setting him down," and as a result of this violent seating of him he was somewhat injured and caused to suffer pain in his afflicted hand and otherwise bruised, from all of which he suffered considerable pain for some time. The auditor also talked roughly to him. Myzell describes himself as being "gentlemanly funny" from the effect of drink which he had imbibed in Pine Bluff, and, as some of the witnesses said, which he continued to imbibe on the train. Some of the witnesses say that he was boisterous, while others say that he was not. It is undisputed that he gave evidence of being in an intoxicated condition.

When Mr. Myzell got off the train at England, the auditor grabbed him by the arm and told the town marshal there that he wanted him to take charge of him as being drunk and disorderly on the train. The marshal asked him if he had a warrant, and he said no, and that ended the matter. Myzell brought an action for compensatory and punitive damages, and recovered $ 500 for compensatory and $ 800 punitive, and the railroad company has appealed.

The first error that the appellant urges is the refusal of the court to permit witnesses to answer as to what Myzell's conduct was when he was drinking. In the first place, there was no offer made to show what the witnesses would have answered had the court permitted them to have done so; and, in the second place, if it was shown that the witnesses would have testified that his conduct was boisterous or dangerous on other occasions, it would not have been pertinent here, as it was not shown that the auditor knew that he was in the habit of conducting himself in such a manner. The offered testimony was wholly foreign to the issue.

The next objection is to instruction No. 3, which is as follows "If you find for the plaintiff, you will assess his damages in any sum not exceeding five hundred dollars as you may believe from the evidence will compensate him for the physical...